Corporate America was riveted on the Supreme Court this term as it issued a series of blockbuster opinions that reshaped IP, antitrust and employment law. Yet even in this banner year, the High Court published only 75 written opinions. Meanwhile, the powerful judges of the federal appellate courts are setting the law and policy that govern the way companies do business in the vast majority of cases. The circuit court judges are interpreting the often scant guideposts the Supreme Court provides, filling in the gaps in the High Court's jurisprudence and sometimes telling the Supremes which way to go. We talked to appellate litigators around the country to find out which circuit court judges the in-house bar should be watching. The following pages highlight the jurists who--for better or worse--are shaping the way you do business.
Judge Richard Posner is an intellectual behemoth--not only is he a leading legal scholar, but also a well-known economic thinker, frequent blogger on social and political topics, long-time lecturer at The University of Chicago and author of nearly 30 books on everything from post-September 11 intelligence reform to literary plagiarism.
"Judge Garland is moderate, exceptionally bright and tremendously principled," says Robert Weiner, a partner at Arnold & Porter and a former colleague of Garland.
"You can't predict his rulings on an issue, but you've always got a fair shake when you go before him." Among Judge Garland's most influential business decisions:
Senior Judge Laurence Silberman
President Reagan appointed Republican Party insider Laurence Silberman to the powerful D.C. Circuit in 1985.
Indeed, the former Yale Law School dean is one of the federal bench's most academic jurists. He's a frequent author of special concurrences--many of which seem designed in large part to satisfy his intellectual curiosity. In the 2004 case Restrepo v. McElroy, for example, he wrote a concurrence of several pages, first noting that, "while not needed to decide this case, I think that an explanation of the current state of the law in this complicated area ... may be useful."
But Calabresi's theoretical approach to the law doesn't lessen the very real impact his decisions have on businesses. One of his most influential--and widely criticized--decisions was Desiano v. Warner-Lambert & Co. In that 2006 case he ruled that federal law did not preempt a Michigan statute that allowed consumers to sue drug companies over FDA-approved drugs in certain circumstances. In reaching his decision, Judge Calabresi went out of his way to assert the courts' authority and snub the FDA, writing that federal courts do not have to defer to regulators' rules in the absence of clear Congressional intent for a regulation to preempt state laws.
Judge J. Harvie Wilkinson III is a conservative in the most traditional sense of the word. A strong proponent of judicial restraint, Wilkinson is a consistent, moderate jurist who is not easily swayed by ideology or politics. Corporate defendants can't expect slam-dunk wins in his courtroom, but are guaranteed a fair hearing if they craft sound legal arguments based in precedent and fair interpretations of applicable statutes.
Although he has the respect of the High Court, Judge Wilkinson probably won't find himself there any time soon. He once was considered President Bush's leading candidate for nomination to the Supreme Court bench, but many experts say he damaged his chances when he told the New York Times about his interview with the president, revealing that the president asked him several questions about his exercise habits in addition to asking him about his time on the bench.
"Nonetheless, the fact that he is often talked about as a Supreme Court nominee means that his opinions have a national audience," Francisco says.